ML20072L267

Response to W Eddleman 830620 Contentions.No Objection Raised to Admission of Portions of Contention 8F.Remaining, Deferred & New Contentions Re Des Should Be Rejected

ML20072L267
Person / Time
Site:	Harris
Issue date:	07/08/1983
From:	Oneill J CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20072L259	List: ML20072L254 ML20072L267 ML20072L278 ML20072L281
References
ISSUANCES-OL, NUDOCS 8307130241
Download: ML20072L267 (4)

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July)8, 1983 N/

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL MUNICIPAL POWER AGENCY ) 50-401 OL

)

(Shearon Harris Nuclear Power )

Plant, Units 1 and 2) )

APPLICANTS' RESPONSE TO CONTENTIONS OF INTERVENOR WELLS EDDLEMAN RELATING TO THE DRAFT ENVIRONMENTAL STATEMENT By a pleading denominated " Wells Eddleman's Response to Staff DEIS" dated June 20, 1983 (" June 20 Pleading"), Interve-nor Eddleman offers a running commentary which attempts to relate the Draft Environmental Statement (" DES") to Eddleman and Joint Intervenor admitted environmental contentions, to Eddleman deferred environmental contentions and to a number of new contentions. Applicants Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency hereby reply to ,

8307130241 830700 PDR ADOCK 05000400 0 PDR

new contentions proposed by Mr. Eddleman and to those previously deferred contentions -- as reaffirmed or revised by Mr. Eddleman -- which are now ripe for disposition by the Board.1/

I. BACKGROUND By " Supplement to Petition to Intervene," dated May 14, 1982, intervenor Wells Eddleman proposed approximately 135 enu-merated contentions. A number of those contentions attempted to anticipate deficiencies in the Staff's DES. Both Applicants and the Staff argued that rulings on such contentions would be premature and should be deferred until after the DES was avail-able. Applicants were willing to stipulate that the subsequent appearance of new information in the DES would constitute good cause for late filing of new contentions in certain areas.2/

1/ Eddleman Contentions 25, 25B, 64D, 64E and 126X are addressed separately in " Applicants' Motion for Reconsideration of CCNC Contention 4 and Change Contention 9 and Applicants' Response To Intervenor Wells Eddleman's Contentions regarding Spent Fuel Transportation," filed contemporaneously.

2/ The Commission's regulations and notice of opportunity for hearing in this proceeding otherwise require that contentions not filed fifteen days prior to the special (or first) prehearing conference must be judged against the five factors set forth in section 2.114(a)(1). See 10 C.F.R. S 2.714(b.); 47 Fed. Reg. 3899 (1982). A balancing of these five factors also is to be applied in assessing amendments to contentions. See 10 C.F.R. S 2.714(a)(3).

Subsequently, the Appeal Board handed down its decision in Duke Power Company (Catawba Nuclear Station, Units 1 and 2),

ALAB-687, 16 N.R.C. (Aug. 19, 1982). There, the Appeal Board held that a late-filed contention cannot be rejected as untimely if it:

(1) is wholly dependent upon the content of a particular document; (2) could not heretofore be advanced with any degree of specificity (if at all) in advance of the public avail-ability of that document; and (3) is tendered with the requisite degree of promptness once the document comes into existence and is ac-cessible for public examination.

ALAB-687, slip op. at 16. Essentially, the Appeal Board held that where the proposed contention meets this three-pronged 2

elaboration of factor (i) in 10 C.F.R. S 2.714(a)(1), that factor is controlling over factors (ii) through (v).

Thereafter, in its " Memorandum and Order (Reflecting Deci-sions Made Following Prehearing Conference)" dated September 22, 1982, (" September 22 Order"), relying on ALAB-687 the Board deferred its ruling on a number of contentions which attempted to anticipate failings in the DES. For such deferred conten-tions the Board adopted a procedure whereby the proponent of such contentions must, within thirty days of receipt of the i previously unavailable document, advise the Board and the parties "as to which of his or her previously filed contentions are (1) submitted for ruling as they stand, or (2) withdrawn, or (3) revised on the basis of new information, including the text of the revision." September 22 Order at 8.

In its " Memorandum and Order (Reflecting Decisions Made Following Second Prehearing Conference"), dated March 10, 1983

(" March 10 Order"), the Board elaborated on the procedure for deferred and new contentions based on previously unavailable documents. The Board indicated that intervenors are required "to explain briefly 'what's new' in the relevant document; i.e., explain why the contention is dependent upon the new in-formation in the document and could not have been advanced ear-lier." March 10 Order at 16.

In its most recent " Memorandum and Order (Ruling on Cost Savings Contentions, Discovery Disputes, and Scheduling Mat-ters)" dated May 27, 1983, the Board established a deadline of k

June 16, 1983 for intervenors to respond concerning deferred cor.tentions based on the DES and commended to the intervenors once again the obligations set forth in the March 10 Order.

Mr. Eddleman obtained an extension of time until June 20, 1983, to file his pleading regarding DES contentions. Appli-cants sought and obtained from the Board a revised deadline of July 8, 1983 to reply.

On June 30, 1983, after Mr. Eddleman filed his response to the DES, the Commission issued its decision in Duke Power Company (Catawba Nuclear Station, Units 1 and 2) CLI-83-19, 17 N.R.C. (1983), affirming in part and vacating in part ALAB-687. The Commission affirmed the Appeal Board's three-part test for good cause for late filed contentions

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(i.e., the elaboration of factor (i) in 10 C.F.R. 5 2.714(a)(1)), but found that all of the five factors in 10 ,

C.F.R. 5 2.714(a)(1) should be applied by licensing boards.

The Commission also affirmed the Appeal Board's holding that "the institutional unavailability of a licensing-related document does not establish good cause for filing a contention late if information was publicly available early enough to provide the basis for the timely filing of that contention."

CLI-83-19, supra, slip op, at 5-6. Mr. Eddleman has generally not addressed all five factors applicable to late-filed conten-tions. But see June 20 Pleading at 31-32 (five factors addressed for Contentions 162 and 163). Where Mr. Eddleman has revised a previously deferred contention based on allegedly new information or has proposed a new contention in substitution for a deferred contention or has proposed a new contention, all five factors in 10 C.F.R. S 2.714(a)(1) must be addressed. Ap-I plicants appreciate that relying on ALAB-687, the Board's instructions regarding contentions based on the DES undoubtedly led Mr. Eddleman to believe that addressing all five factors in this instance was not necessary. Applicants therefore propose that Mr. Eddleman be prepared to address the five factors at 4

the prehearing conference on July 20, 1983.

l l

l l

~

II. STANDARD GOVERNING THE BOARD'S RUL-ING ON CONTENTIONS BASED ON THE DES A. Clarity Applicants found the task of sorting through the June 20 Pleading to be particularly difficult. It was not clear to us in all cases precisely what, if any, revisions were being offered to previously deferred contentions, notwithstanding the Board's direction that the text of revisions be provided. Ap-plicants were forced to refer back to the contention as origi-nally pleaded (which as previously noted by the Board often contained additional cross references) and to attempt to deter-mine how or if Mr. Eddleman was revising such contentions. At best this was a frustrating exercise. Applicants believe that a perfectly appropriate response to the June 20 Pleading would have been a motion for a more definite statement regarding each contention Mr. Eddleman desires to have considered by the Board; the June 20 Pleading is so vague and ambiguous that Ap-plicants should not be required to frame a responsive pleading.

Yet, while this would have been an appropriate response, it would have delayed or rendered less fruitful the scheduled prehearing conference. Applicants have reluctantly responded herein to each new and previously deferred contention under the handicap imposed by the " stream-of-consciousness" nature of the June 20 Pleading. ~

i Applicants have learned over the course of the last year, and particularly during the discovery process, that it is

! imperative to insist on focused statements of the issues which a

Mr. Eddleman seeks to litigate. Mr. Eddleman is not inclined to narrow the focus of an issue during discovery; indeed, he is I inclined only to attempt to broaden issues. Absent a carefully focused contention with basis set forth with reasonable specif-icity, the discovery process becomes unreasonably burdensome

and Applicants' ability to prepare to litigate the issue as ad-mitted is severely hampered.

We have in earlier pleadings cited to the Appeal Board's advice regarding the framing of issues for litigation in li-l censing proceedings, but we believe it bears repeating here i

again:

The applicant is entitled to a fair chance to defend. It is therefore entitled to be told

at the outset, with clarity and precision, what arguments are being advanced and what relief is being asked . . . . So is the Board below. It should not be necessary to speculate about what a pleading is supposed to mean, i

! Kansas Gas and Electric Company (Wolf Creek Generating Station, i Unit No. 1), ALAB-279, 1 N.R.C. 559, 576 (1975) (empnasis supplied; footnote omitted). Where the contention fails to meet even minimal standards for clarity it must be rejected for l

l vagueness. In some cases, where we believed that the Board was l

likely to admit an issue as a litigable contention, we have

-- ,r, - ,, - - - - - , - .- --

restated our understanding of the contention for purposes of clarity.

Applicants appreciate that a layman who proceeds without legal counsel cannot be held to the degree of clarity and pre-cision that is required of lawyers. Id. at 576-77. However, Mr. Eddleman should be held to such standards as are commen-surate with his own background and skills. Mr. Eddleman has called to the Board's attention on more than one occasion his experience in administrative proceedings. He has had the benefit of substantial experience in this proceeding, has had an opportunity to review pleadings filed by other intervenors that expressed the concerns of those parties with much greater clarity, has available to him counsel (retained for the securi-ty planning proceeding and in conjunction with Joint Intervenor contentions) and has educational and professional experiences that demand some degree of facility in expressing ideas and issues. All deficiencies in the contentions should not be ex-cused on the basis that they were prepared by a " layman" under such circumstances.3/ In Applicants' view, Mr. Eddleman has 3/ See Public Service Electric and Gas Company (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 A.E.C. 487, 489 (1973); (a totally deficient pleading may not be justified be-cause it was prepared by a layman); Wisconsin Electric Power Company (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277, 278 (1982) (intervenor must bear full responsi-

~

bility for any possible misapprehension caused by the inadequacies of its brief).

i clearly overextended himself regarding the number of issues in l this proceeding which he proposes to pursue, with a resultant impact on the time available to him to prepare pleadings. The 4

time constraint is one of his choosing, however, and is not an

]

excuse for nearly unintelligible pleadings.

B. Basis With Reasonable Soecificity I

The Commission's rules of practice, at 10 C.F.R.

S 2.714(b), require that the supplemental petition for leave to intervene "... must include a list of the contentions petition-er seeks to have litigated in the matter, and the bases for 1

{

each contention set forth with reasonable specificity." There are several purposes which underly the Commission's standards 1

in S 2.714(b):

A purpose of the basis-for-contention re-i quirement in Section 2.714 is to help assure at the pleading stage that the hearing process is not improperly invoked. For exam-

. ple, a licensing proceeding before this agen-cy is plainly not the proper forum for an at-tack on applicable statutory requirements or

for challenges to the basic structure of the l Commission's regulatory process. Another purpose is to help assure that other parties are sufficiently put on notice so that they

will know at least generally what they will have to defend against or oppose. Still an-other purpose is to assure that the proposed issues are proper for adjudication in the particular proceeding. In the final analysis, there must ultimately be strict ob-l servance of the requirements governing inter-vention, in order that the adjudicatory process is invoked only by those persons who have real interests at stake and who seek resolution of concrete issues.

_9

O Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 20-21 (1974)

(footnotes ommitted).

Particularly instructive, in light of a number of Mr.

Eddleman's contentions which go to what the Staff "ought to have considered" in the DES, is the decision of the Supreme Court in upholding the Commission's requirements for a thresh-old showing of materiality for environmental contentions:

(I]t is still incumbent upon intervenors who wish to participate to structure their par-ticipation so that it is meaningful, so that it alerts the agency to intervenors' position and contentions.... Indeed, administrative proceedings should not be a game or forum to engage in unjustified obstructions, by making cryptic and obscure reference to matters that "ought to be" considered ... .

Vermont Yankee Nuclear Power Corpora _ tion v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553-554 (1976). The Appeal Board in Duke Power Company, supra, emphasized the re-sponsibility of an intervenor to examine publicly available documents to provide the specific foundation for a contention:

[A]n intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facil-ity in question with sufficient care to en-i able it to uncover any information that could serve as the foundation for a specific con-tention.

l ALAB-687, supra, slip op. at 13. The Commision endorsed and expounded upon this principle. See CLI-83-19, supra, slip op.

at 10-12. Thus, Applicants agree with the statement of the pr Board in its September 22 Order that a contention must include "a reasonably specific articulation of its rationale'-- e.g.",

why the applicant's plans fall short of certain safety require- ,

mentsorwillhaveaparticulardetrimental.effectonthe}envi- '

ronment." September 22 Order at 3-4, quoting Duke Power Company (Catawba Nuclear Station, Units 1 and 2);, LBP-82-50, slip op. at 4 (March 5, 1982). Mr. Eddleman.has not always provided a specific articulation of his allegations that operation of the Harris Plant will have a particular detrimen-tal effect on the environment.

s C. Timelir.ess ,

t

.?

Contentions that are filed later than fifteen days prior v n.

to the special prehearing conference (which in this case was 'e N

held on July 13-14, 1982) are considered as lat6-filed and ma'/

be admitted only after a balancing of the five factors set forth in 10 C.F.R. S 2.714(a)(1). See suora, n.2. The Commission recently held 4 hat all five factors must be' applied c-by the licensing boards in ruling on the admissibility of

, , .s late-filed contentiona, esen if the contention is filed late

~ ' '

}-

because it is based solely on information in institutionally ' E y unavailable licensing-related documents. CLI-83-19, sur ,

a slip op. at 5. Furthermore, the Commission affirmed the~ ruling ,

in ALAB-687 that "the institutional unavailability of a  :, g licensing-related document does not establish good _nause foh>

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filing contention late if information was publicly available early enough to provide the basis for the timely filing of that

' ~

contention." Id. at 6.

As noted previously,s,in most cases Mr. Eddleman has not +

addressed the five lateness factors for his new contentions or revised contentions based on the DES. Mr. Eddleman must make the showing required by'10 C.F.R.

$ 2.714(a)(1) for admission of any late' filed contention, and Applicants propose that he be given an opportunity to attempt to do so at the prehearing con-ference.

Fatal, however, to Mr. Eddleman's attempt to proffer for litigation new issues based on the DES in a number of instances is his failure to demonstrate that the contention is based on

' information " wholly dependent" on the DES and "could not there-fore be advanced with any degree of specificity (if at all) in advance of the public availability of the [ DES)." ALAB-687, suora, slip op. .at 16,. It is not enough, as Mr. Eddleman has

/

argued in a number of instances, to state simply that the lack of any new information in the DES is "what's new". As the

^

Commission noted in af#irming ALAB-687 on this question, "much of the information in an' Applicant's ER is used in the DES."

Thus, " factual aspects of particular issues can be raised c before the DES is prepared. The Commission stated its view t.kat "the filing of an environmental concern based on the ER

~~

will not be deferred because the staff may provide a different k

] /'

u m._

analysis in the DES." CLI-83-19, supra, slip op. at 13. Where an environmental issue was treated in a particular manner in the ER, and based en positions previously taken by the Staff in other environmental rtatements and in regulatory guidance,' the Staff was likely to treat that environmental concern in a similar manner in its DES, Mr. Eddleman cannot claim that the informatior. or lack of information in the DES is new. Interve-nors are required "to diligently uncover and apply all publicly available information to the prompt formulation of conten-tions." Id. at 11.

D. Challenge to Commission Regulations Absent special circumstances, "any rule or regulation of the Commission, or any provision thereof .. shall not be

subject to attack by way of discovery, proof, argument or other means in any adjudicatory proceeding involving initial licens-ing . . ." 10 C.F.R. % 2.758. This prohibition against chal-lenges to Commission regulations in adjudicatory proceedings also extends to the basis and foundation of such regulations.

See Potomac Electric Power Company (Douglas Point Nuclear Generating Station, Units 1 and 2) ALAB-218, 8 A.E.C. 79, 89 (1974), wherein the Appeal Board stated that "[t]o go behind (provisions within a regulation] and challenge the basis on which they rest is in effect a challenge to the regulation itself." Mr. Eddleman's contentions which challenge a

5 Commission regulation or the basis and foundation of a regulation are therefore not subject to resolution in this pro-ceeding, and must be rejected.

III. RESPONSE TO CONTENTIONS In light of the foregoing general discussion, Applicants respond to Mr. Eddleman's proposed contentions in numerical order.

Contention 8F Contentions 8F(1)-(3) challenge the Staff's DES treatment of the health effects of the uranium fuel cycle and constitute "a specific contention" addressing the issues previously raised by Mr. Eddleman as Contentions 8B-8E. See Eddleman Supplement to Petition to Intervene, May 14, 1982, at 50-51 and September 22 Crder at 38.4/ Proposed Contention 8F(4) is a direct chal-lenge to Table S-3 as it relates to the impacts of the manage-ment of low-level and high-level wastes..

Applicants do not oppose admission of Contention 8F(1),

which we understand to challenge the adequacy of the DES i 4/ Applicants assume Mr. Eddleman is substituting Contention 8F for the previously submitted Contentions 8B-8E, based on his reference to Contention 8F as the submittal of "a specific con-tention re 8B and the rest of contention G," and his incorpora-tion of Contentions 8C-E in various portions of Contention 8F.

See June 20 Pleading at 13-15.

l 1

because it does not discuss the health effects of coal particulates released from fossil fuel plants, the energy and process heat of which is required during various phases of the uranium fuel cycle.

Based on our understanding of the contention, Applicants do not oppose admission of the following subparts of Contention 8F(2). The DES assessment of the health effects of the radiological effluents specified in Table S-3 is inadequate in that (i) effects are considered for too short a time period; (ii) food chain concentration analyses are wrong (former Con-tention 8C); (iii) radionuclide concentration values are not conservative in view of MRC Translation 520 (former Contention 8D); and.(iv) radiation doses from internal and external emitters are underestimated (former Contention 8E).

Applicants do, however, opoose the admission of the Eddleman allegation that certain doses from wastes were not considered. June 20 Pleading at 14. Although couched in terms of doses, the allegation effectively challenges the adequacy of the list of effects specified in Table S-3. This challenge is evident from Mr. Eddleman's reference to ignored curies, which are releases of radioisotopes. The effluent release values of the uranium fuel cycle have been the subject of an exhaustive rulemaking proceeding which culminated in a final fuel cycle rule. See 44 Fed. Reg. 45362 et seq. (1979).5/ These release S/ One aspect of the rule, the zero-release assumption, re-cently was endorsed by the Supreme Court. Baltimore Gas &

(Continued on Next Page)

=

.- ._ - _ ._ = _ _ . . _ _ - _

values or effects are no longer litigable in individual licens-ing proceedings. See 44 Fed. Reg. at 45363. While the health effects of the values in Table S-3 continue to be subject to challenge in individual license proceedings pending adoption of the explanatory narrative that will be part of the S-3 rule, the adequacy of the S-3 Table is no longer subject to chal-lenge. Accordingly, this Eddleman allegation should be ,

l rejected. See 46 Fed. Reg. 15154 et seq. (1981) (Proposed S-3 l Explanatory Narrative).

Applicants also oppose the admission of Contention 8F(3),

which asserts that the DES contains insufficient information about how the dose calculations from Table S-3 radioactive effluents were calculated. Assuming, arguendo, that Mr.

Eddleman is correct that an individual should be able to glean from the DES the source material used to generate the DES find-ings, Mr. Eddleman can do so now. Mr. Eddleman refers only to two pages in Appendix C of the DES, which is the site specific explanatory narrative for the Shearon Harris facility, and asserts that insufficient information is contained in these pages about how doses are calculated. June 20 Pleading at 15.

He ignores the discussion of the impacts of the uranium fuel (Continued)

Electric-Co. et al. v. NRDC, 103 S.Ct. _ _ _ , 51 U.S.L.W. 4678 (Jtine 6, 1983).

_ . - _ _ _ _ - - _ _ _ _ _ _ - - _____ , .. - _ - . . . . - . - _ . _ = -

l cycle contained in the body of the DES at 5 5.10, which refers ,

i l- to the final fuel cycle rule and the proposed narrative expla-nation to accompany Table S-3 published in the Federal Regis- ,

i <

ter. See 44 Fed. Reg. 45362 e'; seg. (1979) and 46 Fed. Reg. 15154 et seq. (1981). Both of these documents discuss Table S-3 in great detail. The proposed narrative explanation spe-cifically states that to the extent practicable, the narrative l

1s based on WASH-1248, NUREG-0116, NUREG-0216 and other materials in the S-3 hearing record. 46 Fed. Reg. at 15155.

l (These documents also are referred to in 5 5.10 of the DES.)

Moreover, with respect to environmental models used to i

d calculate the transport of released radioactivity to man and to i

estimate potential health effects, specific reference is made to the GESMO hearings and Appendix C of NUREG-0216. 46 Fed.

l Reg. at 15166. These models account for the dispersion of

! radioactivity released in the environment, bioaccumulation in food pathways, the uptake by man and dose commitments resulting I

from that uptake. Id.

i in sum, a massive quantity of technical materials support Table S-3 and the proposed narrative to accompany the S-3 rule.

l The DES cannot possibly describe or reference all of that in-formation. Nor is it required to do so. In this case, howev-er, to the extent an individual, such as Mr. Eddleman, is in-terestedsin the basis for the Staff's findings on the health effects of the uranium fuel cycie contained in the DES, he can l l i

. . _ . _, _ _ , , . _ . ~ _ , _ - . _ , . _ . , , .. . _ _ _ . . , . . . _ _ . . _ . _ , _ . . . . , _ . - . _ ...--

freely pursue his interest by referring to the documents which are referenced in the DES (and, for that matter, the documents referenced in the DES-referenced documents). Consequently, Mr. Eddleman's Contention 8F(3) has no basis and must be rejected.

Contention 8F(4) states, "the DEIS fails to demonstrate that radioactive materials, buried as low-level or high-level waste will not be released to the environment either before burial (i.e. in transit, storage) or after burial." June 20 Pleading at 15. Mr. Eddleman explains that his challenge here is to the absence in Table S-3 of any release numbers for high level waste, and the fact that Table S-3 finds "no significant effluent to the environment" from low level waste. Id. In Mr.

Eddleman's view, "Because such a release is possible, . . . the Staff needs to evaluate the unintended effect of accidental or inadvertent release of these radionuclides to the environment."

Id.

Contention 8F(4) should be rejected by the Board because it is a direct challenge to Table S-3. Table S-3 lists the en-vironmental impacts, including radiological releases, produced during the uranium fue cycle. The release values considered in the formulation of Table S-3, including releases from burial of low and high level wastes, are no longer subject to chal-lenge in individual licensing proceedings. See 44 Fed. Reg. 45362, 45363; DES 5 5.10. This fact was made clear in the

. _ _ _ _ _ _ _ _ __ = _ - - . _ . _ _ - - . -. -- -- . . _. _ _ _ ~_

d i

Supreme Court's first decision on Table S-3. Vermont Yankee l

1 Nuclear Power Corp. v. MRDC, 435 U.S. 519 (1978). Furthermore, in its recent S-3 decision, the Supreme Court upheld the valid-i ity of the Table S-3 assumption that there would be no releases from the storing of high level wastes because of the use of a technology to completely isolate these wastes from the environ-ment (the so-called "zero-release" assumption). Baltimore Gas

& Electric Co. v. NRDC, supra. Contention 8F(4) either chal-lenges conclusions in Table S-3, or challenges the zero-release i

assumption underlying the Table. Both challenges are impermissible. Accordingly, Contention 8F(4) should be rejected.

Contention 22C i

original Contention 22C alleged that the Applicants' cost-benfit analysis demonstrated a net loss. This contention was rejected by the Board. September 22 Order at 44.

Mr. Eddleman now proposes a new Contention 22C:

I The Staff has failed to demonstrate that i the benefits of operating the Harris Plant outweigh the costs.

June 20 Pleading at 16. Mr. Eddleman argues that the Staff's

cost-benefit summary is " highly subjective" and " extremely brief." He offers three criticisms of the DES to support his contention

(1) the probability and consequences of reactor accidents have been underestimated, (2) costs of emergency 1

l ,

i

- , - - - ~ ,___.e , . , _ _ - ~ , , . , _ . . _ . _ _ . _ . _ , .__

i planning and preparation have been ignored, and (3) the qualitative assignment of values to benefits and costs are 1

flawed. Id.

Mr. Eddleman argues that the cost-benefit analysis is

" highly subjective" and that the classification of benefits and j costs as "large" or "small" (contrary to Mr. Eddleman's asser-tien, no " medium") is flawed. A cost-benefit summary is 3.ot susceptible to precise quantification and need not be expressed in monetary terms when there are important qualitative consid-erations. 40 C.F.R. 5 1502.23 (CEQ Guidelines). The Commission has disapproved of attempts to place a monetary value on the benefit of electricity in an attempt to derive j some sort of precise calculus. Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), ALAB-179, 7 A.E.C. 159, 172 (1974); Illinois Power Company (Clinton Power Station, Unit Nos. 1 and 2), ALAB-340, 4 N.R.C. 27, 46-47 (1976). The assignment of the classification "large" to the i additional capacity and energy to be generated from the Harris 1

i Plant is clearly justified by the previous consideration of

[ this issue by the Commission in the FES for the Harris Plant at the construction permit stage and by the statement of consider-ations underlying the Commission's rules at 10 C.F.R.

S 50.53(c). Mr. Eddleman's difference of opinion in this

~

i regard does not present a litigable issue; litigating the need j for power from the Harris Plant is barred. Litigating whether i

__., ___ _ _ - . , . _ _ _ _ _ _ _ . - _ _ . _ _ _ _ _ . . . ~ . _

1 i

the additional capacity and energy from the Harris Plant is a

'small, medium or large" benefit would raise the same issues ,

and is similarly barred by 10 C.F.R. 6 51.53(c). See Board 4:

Memorandum and Order (Ruling on Cost Savings Contention, Dis-covery Disputes and Scheduling Matters) dated May 27, 1983.

t

! Mr. Eddleman has elsewhere proposed contentions on the 1

probability and consequences of reactor accidents (Eddleman 110X) and costs of emergency planning (Eddleman 57D). These issues are simply reasserted in the context of Contention 22C.

Contention 22C is a new and late-filed contention. It is not " wholly dependent" on the DES. Mr. Eddleman had available f to him the cost-benefit balance struck in the Harris FES at the l Construction Permit stage. New Contention 22C could have been i

advanced just as easily as old Contention 22C in March 1982.

But in the final analysis, Contention 22C should be rejected as not presenting a litigable issue. Mr. Eddleman points to no environmental impact that has not been accounted for. He sim-ply disagrees with the bottom line in the Staff's preliminary cost-benefit analysis.

The Staff should treat Mr. Eddleman's discussion at Con-i tention 22C as a comment on the DES. For all of the reasons i

discussed above, the Board should reject Contention 22C.

t

r i

l 1 l Contentions 34 and 36 l 1

l In its September 22 Order at 47-48, the Board deferred i

l portions of proposed Contentions 34 and 36 dealing with the en-vironmental consequences of beyond design basis accidents, pending publication of the Staff's DES.1/ Mr. Eddleman now seeks to revive those contentions, alleging that the DES is de-ficient in failing to consider the environmental effects of such so-called " Class X" accidents initiated by acts of terror-ism / sabotage or by severe weather. See June 20 Pleading at 20-23.

Pursuant to the Commission's Statement of Interim Policy, 45 Fed. Reg. 40101 (1980), the DES for the Harris Plant includes an evaluation of the environmental impact of both design-basis and beyond-design-basis accidents. DES, $5.9.4.

In particular, the Staff considered four specific beyond-design-basis scenarios, all with consequences ranging from partial fuel melting up to complete core melt and breach of containment. Id. at 5-58 and App. E. The Staff's assessment did not include sequences initiated by natural phenomena (i.e.,

tornadoes, floods or seismic events) or those that could be s/ The Board rejected these two contentions to the extent that they sought to raise design safety considerations.

September 22 Order at 47, 48. Any such safety concerns which Mr. Eddleman seeks to raise now are therefore barred. See, e.g., reworded Contention 34, June 20 Pleading at 21.

l

- ~ . - - - . . - . - __ . - - _ -. _

l initiated by deliberate a' cts of sabotage. The Staff provided the following explanation for this decision:

The radiological consequences of such events would not be different in kind from those 4 which have been treated. Moreover, there are design criteria relating to effects of natural phenomena in 10 CFR 50, Appendix A, and safeguards requirements in 10 CFR 73, ensuring that these potential initiators are

, in large measure taken into account in the design and operation of the plant. The data base for assessing the probabilities of events more severe than the design bases for natural phenomena or sabotage events is be-yond the state of the art of probabilistic risk assessment. In addition, the staff judges that the additional risk from severe accidents initiated by natural events or sab-otage is within the uncertainty of risks presented for the sequences considered here.

l _I_d . at 5-60.

While Mr. Eddleman boldly castigates the Staff for not l evaluating such events, he makes no attempt to rebut the above 1

explanation nor has he made an allegation that such events could lead to environmental consequences worse than those con-sidered by the Staff (core melt and containment failure).

Absent such a showing, Applicants contend that proposed Conten-tions 34 and 36 must be rejected in that Mr. Eddleman fails to I set forth a basis with requisite specificity for these conten-tions.7/

7/ Mr. Eddleman refers to IE Information Notice No. 83-27 as support for his position that such acts of sabotage or terror-

! ism must be considered in the NEPA evaluation. This Notice de-scribes two events which may have involved deliberate acts

! against plant equipment, but does not discuss the probabilities or environmental consequences of such events.

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} Contention 57D -

l The Board earlier deferred Eddleman Contention 57 because it alleged deficiencies in emergency plans for the Harris plant that do not yet exist. September 22 Order at 54. The Board i

noted that deferral of Contention 57 was a course in which Mr.

4 Eddleman concurs, citing his own statements at a prehearing conference (Tr. 380). Id. at 6 (n.1) and 54. In " Wells j Eddleman's Contentions re CP&L Site Emergency Plan (SHNPP

! Operating Manual, Volume 3, Book 1)," May 2, 1983, Mr. Eddleman I

i appears to attempt to incorporate Contention 57 by reference in

!I Proposed Contention 150.

j In the June 20 pleading, Mr. Eddleman comments on parts A to C of Contention 57, and appears to plead part D for Board ruling at this time. The allegation is that the Staff failed to include the costs of emergency planning in the DES assess-ment of the costs and benefits of operating the Harris plant.

June 20 Pleading at 2, 23. We do not view this NEPA allegati,on l as having baen deferred under the Board's September 22 ruling which addressed a contention alleging emergency planning 1

i deficiencies. 4 1

Mr. Eddleman's confusion appears to be of his own making and may originate from the presentation of page 153 (attached) of Mr. Eddleman's Supplement to Petition to Intervene, May 14, 4

1982. The paragraph labeled "D" addresses emergency plans and l

l  :

t 1

. _ _ . , - , . _ . ~ - _ . _ _ _ , . _ _ . . . . _ _ . - . , _ _ _ _ . . . . - . - _ , . . _ , _ _

. ._ - - _- . .=. __- --- - . - - _ - - .. . . . - - .

t ,

i 1

i

wars the subject of the parties' presentations and the Board's ,

deferral ruling in 1982. The paragraph at the bottom of the page, labeled "#", argues that Applicants' Environmental Report .

i improperly excluded the costs of emergency planning. While Ap-plicants overlooked this one unmarked paragraph in Mr.

Eddleman's lengthy petition, he also failed to raise it with the Board at the prehearing conference or in objections to the l Sepemmber 22 Order.

i j In fact, the unmarked paragraph in the original petition

! demonstrates that the Contention 57D now discussed in the June 20 Pleading is untimely and should have been raised earlier with respect to available information -- i.e., Applicants' ER.

i Should the Board consider this NEPA contention on its merits now, Applicants submit that it is barred by the Board's Memo-randum and Order (Ruling on Costs Savings Contentions, Discov-ery Disputes, and Scheduling Matters), May 27, 1983, which, at 8-9, holds that at the operating license stage environmental, but not economic, costs are at issue.

Pursuant to that same Memorandum and Order, Applicants will respond to Mr. Eddleman's proposed e.iergency planning con-

, tentions on July 11, 1983.

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l l

Contentions 61A and B Eddleman Contentions 61A and B concern the long-term health effects of radon. As Mr. Eddleman notes, the Board deferred Contention 61A and rejected Contention 61B in its September 22 Order. Mr. Eddleman now seeks to reinstate Con-tention 61A with an amendment to it which would add the lan-guage of Contention 61B concerning the synergistic health effects of radon and tobacco smoke, and radon and chemical -

carcinogens. See June 20 Pleading at 24. Applicants oppose reinstatement of proposed Eddleman Contention 61A, as amended.

Mr. Eddleman cannot demonstrate that Contention 61A, as amended, which attempts to bootstrap rejected Contention 61B again into the proceeding, is " wholly dependent" on the DES.

Thus he fails to meet the threshold standard for admissibility of a contention.

In any event, Contention 61A does not present an issue litigable in a licensing proceeding. The Commission recently issued a Memorandum and Order in the consolidated radon pro-ceeding which makes clear that licensing boards ought not accept for litigation contentions filed in individual licensing proceedings on the health effects of radon. See Philadelphia Electric Company et al. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-83-14, 17 N.R.C. (May 27, 1983). Pend-ing before the Commission was the Appeal Board's decision in t

l l

I

the Peach Bottom consolidated proceeding on the health effects of radon, ALAB-701, 16 M.R.C. (Nov. 19, 1982). The Commission's Memorandum and Order holds in abeyance its deci-sion whether or not to review ALAB-701.

In CLI-83-4, the Commission expressly recognizes that its initial policy was to permit litigation of radon issues in individual licensing proceedings, which is what led to the con-solidated radon proceeding. Id. at 8. However, the Commission's policy has now changed, due to the current complex procedural posture of radon-related issues, viz., the pendency before the Commission of the Appeal Board's decision on the health effects of radon (ALAB-701), the ongoing reassessment of the Commission's final rule on uranium mill tailings (10 C.F.R. Part 40, Appendix A), and the current EPA authority to promul-gate final active site mill tailings standards. Because of the need to evaluate radon issues, including the health effects of radon, in the context of all of these current activities, the Commission has decided that the generic mill tailings rulemaking proceeding "will likely produce a broader assessment to aid in [its] deliberations." Id. at 10. Accordingly, the Commission has directed licensing boards to defer consideration of radon issues and condition licenses appropriately, pending Commiselon resolution of the radon issue. When reassessment cf the mill tailings regulations has been completed, the Commission will generically resolve the significance to be

_- . . _ . _ ~ . - _ - . _ . - - - .. . -- - -- ..- .- -.. .-- _ _ .

I -

l accorded to radon, as part of the environmental impact of the uranium-fuel cycle, in cost-benefit analyses supporting reactor

licensing decisions. Id. at 11-12.

i j Proposed Eddleman Contention 61A, as amended, falls squarely within the Commission's directive to licensing boards not to consider radon issues. Mr. Eddleman's focus on the time j over which health effects should be considered, for example, is a direct challenge to the de minimus approach endorsed in i

ALAB-701 and specifically identified by the Commission as a

subject expected to be considered in the pending rulemaking.

Id. at 11. In view of the Commission's directive in CLI-83-14, proposed Eddleman Contention 61A, as amended, should be rejected by the Board.

I Contention 75B i

Mr. Eddleman proposes a new Contention 75B as follows:

Applicants have not demonstrated the ability to ,

exclude Corbicula from the Harris reservoir and auxiliary reservoir and the heat exchangers needed to keep Harris is cold shutdown.

June 20 Pleading at 9.

Mr. Eddleman states as his basis for this contention that

" Applicants have a record of failure to chlorinate to prevent

marine growth in the RHR systems at Brunswick." Id. Mr.

Eddleman fails to point to one specific inctance of failure to chlorinate at Brunswick, but instead relies only on the l  ;

i r,y. . . - --

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--.--,v.-. , - , . v v c., . . - - , - - - - > - - , . - . - + , - _-- ---w----,------.-----w--*---m--+

unsupported, generalized statement. Further, he does not allege facts about the Harris Plant which would lead to a con-clusion that plant procedures there will be unable to exclude Corbicula.

Applicants have previously described the appropriate measures to control biological fouling by Corbicula. FSAR S 10.4.5.2, and 10.4.5.3 (traveling screens and chlorination).

In the DES at page 5-20, the Staff addresses the proposed continuous low-level chlorination of the service water system by the Applicants (ER 3.4.2-3) which will be used to control Corbicula and prevent biofouling (DES at 4-3, 4-11, 5-20) and concludes that such control of the Asiatic Clam will result in no detrimental impacts on the reservoir. This low-level chlorinatien is sufficient to prevent Corbicula intrusion into the Service Water System (Applicants' Response to Request for Additional Information Regarding IE Bulletin No. 81, March 25, 1983), and the Service Water System with the Ultimate Heat Sink as backup is designed to assure safe shutdown in any event. To further prevent Corbicula intrusion into heat exchanges, Appli-cants have committed to adequate inspection procedures as well.

Id. Therefore, Contention 75B does not provide a basis with

! rcquisite specificity to be admitted as a contention in this proceeding.

In addition, the contention does not meet the five lateness factors of 5 2.714(a)(1). Mr. Eddleman states that 1

I l

l

. t the good cause for not filing the contention earlier consisted /

of unavailability of the information and the Staff opinion as to likelihood of Corbicula getting into SHNPP Reservoir. Mr.

a S

Eddleman insists that the DES provides new data on the loca-tions of Corbicula and the probabit ty of its locating in both SHNPP Reservoirs. However, the ini.:rnition in question is not new and has been available for formulation of contentions for a significant period of time.

In previously admitted Contention 75, Mr. Eddleman asserts that access (specifically the condensers) to the SHNPP heat sink could become blocked by marine growth, including Corbicula.8/ In setting forth his original proposed Contention 8/ In his June 20 Pleading at 9, Mr. Eddleman briefly comments on Contention 75 and concludes that the DEIS has " lent it more basis." It is not apparent, however, that Mr. Eddleman reviewed the DES with a great deal of precision. For example, Mr. Eddleman says that "[ alt p. 5-20 the Staff states it expects Corbicula to get into the Harris Reservoir through some (unspecified) mechanisms." Id. at 8. The DES does provide the specifics, though, where it says that "[t]he most plausible transport mechanism is the planned withdrawal of makeup water from the Cape Fear River during two-unit operation." DES at 5-20. Also Mr. Eddleman states that "...the Staff has failed to show that the same or other mechanisms won't get Corbicula into the Harris auxiliary reservoir...." Eddleman Response at

8. But the Staff has already addressed this: "The Asiatic Clam has been found by the Applicant in Buckhorn Creek below the main dam and may be expected to be introduced to the main and auxiliary reservoirs by various transport mechanisms." DES at 5-20.

The Staff does assess plans by the Applicant to prevent fouling of the service water system by Corbicula, expresses no difficulties therewith, and concludes that there will be no detrimental impact on reservoir aquatic biota. Id. Such a finding by the Staff is contrary to Mr. Eddlemanr s assertion that the DES provides:more of a basis for Contention 75.

75 Mr. Eddleman referenced NRC IE Bulletin 81-03 " Flow Blockage of Cooling Water to Safety Components by Corbicula sp. (Asiatic Clam) and Mytilus sp. (Mussel)," dated April 10, 1981. As pointed out in " Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman," dated June 15, 1982, Mr.

Eddleman fails to reference or take issue with Applicants' Re-sponse to IE Bulletin 81-03 of July 10, 1981 (" Applicants' July 10 Response") or with discussion in the FSAR concerning measures to control blockage of the cooling tower water intake.

Mr. Eddleman has, of this date, failed to even conduct discov-ery regarding Applicants' July 10 Response.

Had Mr. Eddleman done so, he would have had information from as early as July of 1981 stating that Corbicula were known to be in the Cape Fear River and Buckhorn Creek, In Appli-cants' July 10 Response, Applicants also stated that "Corbicula fluminea is expected to eventually be introduced into the Shearon Harris Reservoir." The response became public informa-tion almost two years prior to Mr. Eddleman's assertion that his now contention derives from "new" information concerning the proximity of Corbicula to the plant, and its likelihood to get into both SHNPP reservoirs.

Because of the availability of the information in question for almost two rears ano adequate notice thereof, Mr.

Eddleman's Contention 75B is untimely. He has failed to ana-lyse and address the information available to him on this subject and provides no basis with requisite specificity for his contention. Contention 75B must be rejected.

Contentions 85 and 86 Contentions 85 and 86 which allege deficiencies in the en-vironmental statement's consideration of fish kills were deferred by the Board until after the availability of the DES.

See September 22 Order at 63. Taken together, the contentions allege that inadequate consideration has been given to fish kills due to thermal discharges into the SENPP Reservoir and that no appropriate measures to prevent or minimize fish kills have been undertaken. Eddleman Supplement to Petition to In-tervene, dated May 14, 1982, at 192.

As noted in Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman, dated June 15, 1982 at 48-50, thermal discharges have been considered in detail both by the Applicants and by the NRC. Mr. Eddleman now cites an alleged lack of analysis by the NRC Staff as the basis for Contentions 85 and 86. June 20 Pleading at 26. However, the Staff has both examined Applicants' analysis and performed its own inde-pendent analysis of the thermal impacts of blowdown discharge.

DES at 5-2. The Staff concludes that: (1) Applicants' reser-6 voir temperature predictions are reasonable, (2) blowdown dis-charges at SHNPP will comply with state water quality stan'dards for temperature and will be within requirements approved in the

I SHNPP NPDES permit, and accordingly, (3) "no detrimental effects on the aquatic biotic community of the reservoir are expected." DES at 5-2, 5-3 and 5-19. Mr. Eddleman simply ig-nores the information available to him on this issue.

Thus Mr. Eddleman has not prcvided any basis with requi- ,

site specificity to support Contentions 85 and 86 as to effects of thermal discharges on fish and other aquatic life. These contentions, therefore, should be dismissed.

Contentions 88A and B Mr. Eddleman appears to advance Contention 88 for Board ruling. June 20 Pleading at 5-6, 27. Applicants originally argued that while it was cast in terms of cost-benefit, Conten-tion 88 in substance was a challenge to the feasibility of timely evacuation of the Harris reservoir in the event of an accident. Applicants' Response to Supplement to Petition to Intervene by Wells Eddleman, June 15, 1982, at 44. The Board deferred the contention, noting that "it asserts deficiencies in the forthcoming environmental statement and emergency plans." September 22 Order at 63.

The original 88A alleged that the yet unissued DES should not consider the recreational benefits of the Harris reservoir because of the risk of radiation exposure from accidents. The

~

new discussion takes issue with a DES statement that refers to Part 100 calculations in the Staff *s safety evaluation. At l

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this point, it is not clear whether the contention addresses NEPA, Part 100 compliance, or emergency planning. As an attack under NEPA of DES Table 5.6 for not including beyond-design-basis accidents (June 20 Pleading at 5), the contention lacks basis because it ignores the assessment of severe accidents at DES pages 5-58 to 5-62. As a challenge to Part 100 compliance, the contention is untimely and should have been directed to Ap-plicants' FSAR and/or the Staff's draft SER. Finally, Mr.

Eddleman has not challenged, in his on-site emergency planning contentions of May 2, 1983, Applicants' capability to evacuate the Harris reservoir area in the event of a radiological emer-gency.

Mr. Eddleman concludes his discussion of 88A by noting that the benefits of recreation in these areas should be ex-cluded from the DES. June 20 Pleading at 5. Chapter 6 of the DES clearly considers only the benefits of the electrical ener-gy and additional capacity provided by the plant. Consequent-ly, there is no basis for the contention. Mr. Eddleman repeats this assertion, however, in his discussion of 88B, and cites to pages 4-25 and 4-26.of the DES. June 20 Pleading at 6. The discussion there of the aquatic resources and estimated fishing harvests is merely a part of the DES description of the envi-ronment which might be affected by plant operation. This in no ,

way alters the indisputable fact that the Staff has not counted recreation activity as a benefit under NEPA.

i I

I The balance of 88B repeats 88A and adds that the economic costs of evacuating the reservoir aren are not included in the l

)

i DES. In addition to the fact that such costs are remote and i t

speculative, their consideration is barred by the Board's May 27, 1983, Memorandum and Order.

Contention 95 l

] Contention 95, previously deferred, asserts that the cost I

of Harris property insurance should be included in the cost-benefit analysis. This contention seeks to inject economic

cost issues into the operating license proceeding. This Board i

I has previously ruled that economic costs -- such as fuel costs and operating and maintenance costs -- are barred by 10 C.F.R.

I 5 51.5S(c). See the Board's May 27, 1983 Memorandum and Order.

t Insurance costs should be similarly barred.

i l Mr. Eddleman claims that the Staff considered "the avail- ,

I I' ability of nuclear property insurance to reduce the cost of a i severe accident." June 20 Pleading at 27. To the contrary, I

f what the Staff did in its analysis of the economic risk of an  !

i accident (DES at 5-78) was to ignore the availability of insur-ance to offset the economic consequences of an accident. The Staff estimated the cost of decontamination and restoration of '

a nuclear plant after an accident to be approximately $1400 million (1985 dollars) and the cost of replacement power for

eight years to amount to $456 million (1985 dollars), for a ,

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total economic risk of $1856 million. When multiplied by a

~4 probability factor of 10 per reactor year, the annual economic risk is calculated to be approximately $185,600. The Staff's analysis is conservative (i.e., overestimates the economic risk because it does not account for insurance). The Staff admits that " insurance would cover $300 million or more" of the economic risk (actually over $900 million). The Staff justifies this conservatism by stating that the " arithmetic product of the insurance payment and the risk probability would theoretically balance the insurance premium." DES at 5-78.

This statement is certainly not a position of the staff on the probability of an accident but rather a " theoretical" justifi-cation for not taking into account insurance coverage. Yet even with this overstatement of the economic risk, the resul-tant monetary value is small. In any event, Mr. Eddleman's argument does not in any way support his contention that insur-ance costs should be considered.

Contention 95 should be rejected as lacking in basis and barred by Commission regulation.

Contention 105 Eddleman Contention 105 previously was rejected by the Board:

Eddleman 105 alleges that "new information" on credibility of class IX accidents make the established exclusion area and low population zone erroneous. :This contention apparently i

L_ _ . .. . .. . . . . _ . . . . . -

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I assumes that only design basis accidents are ,

used in establishing these zones, which are

siting criteria. However 10 CFR Part 100 i requires establishing these zones based on a breach of containment incident. The contention does not indicate how the postulated releases in Reg. Guides 1.4 and 1.70 are insufficient and how the analysis should be changed. If the con-tention is in fact asserting that an even more j severe accident should be postulated for the

purposes of establishing these zones, it is not i sufficiently specific. Eddleman 105 is

rejected.

! September 22 Order at 66. Mr. Eddleman now resubmits the same y contention on the basis of the DES. June 20 Pleading at 5-7. l The contention is untimely in that it is not wholly depen-

! dent on the content of the DES and could have been advanced earlier with the requisite degree of specificity. See Catawba, supra, ALAB-687. The DES section under attack here (5.9.4.4) merely summarizes principle elements of the Staff's safety evaluation of plant design, as a basis for considering accident risk in the DES. Whether or not the required Part 100 analyses have been performed correctly is a matter that could have been challenged on the basis of the Applicants' FSAR. In order to determine compliance with Part 100, Applicants performed an accident analysis which assumes a hypothetical situation re-sulting in the release to containment of 100% of the core noble i gases and 50% of the halogens (including 25% of the equilibrium radioactive iodine invencory). We pointed out one year ago that tnis analysisHis reported in FSAR S-15.6.5.4. See Appli-cants' Response to Supplement to Petition to Intervene by Wells

_.. .._ - . . ~ . _ _ _ _ _ . . _ _ . - _

Eddleman, June 15, 1982, at 90, 97-98. In addition, the Staff's assessment of Part 100 compliance was documented in the draft SER (sec. 15), dated January 20, 1983. Any contention alleging that the LPZ and exclusion area have been improperly determined could have and should have been raised earlier. In addition, the contention still lacks basis with reasonable spe-cificity and has not been amended to cure the deficiencies noted in the Board's previous ruling on the contention.

Contention 110X Eddleman proposed Contention 110X, which was deferred by the Board in its September 22 Order, is now resubmitted by Mr. Eddleman without any additional basis -- beyond the com-plaint that the DES does not consider certain issues which Mr. Eddleman believes should be considered. The majority of the issues referenced specifically in this proposed contention are dealt with in various other Eddleman proposed contentions (i.e., spent fuel transport, sabotage, fish kills and nuclear fuel cycle health effects) and, as such, should be rejected as duplicative of proposed Contentions 8F(2)(1), 25, 25B, 34, 36, 64D, 64E, 85, 86 and 127X.

Proposed Contention 110X also incorporates by reference j previously proposed Contention 108 which has been rejected by the Board. September 22 Order at 67. To the best of Appli-

! cants' ability to understand proposed Contentions 108 and 110X,9/ Mr. Eddleman appears to contend that the DES is l

l 9/ With respect to proposed Contention 108, wa note that the .

Board stated it had " experienced some difficulty in determining )

)

(Continued on Next Page)

deficient in failing to consider the performance capabilities (through testing) of certain plant'aystems and equipment under beyond-design-basis conditions. Applicants, hcVever, fail to see any relevance between equipment performance testing and en- .

vironmental 1.mpacts associated with the operation of the Harris .

Plant. Certainly, Mr. Eddleman provides no explanation of this contention sufficient to provide-the requisite basis to cause the Board to inquire further.

Mr. Eddleman also includes within proposed Contention 110X complaints regarding the Staff's accident analysis set forth in Section 5 of the DCS. In particular, Mr. Eddleman appears ~to' .

allege that the use of non-plant specific data (i.e., data de-rived from the updated /"rebaselined" WASH-1400) i& somehow im- - ,

f4 proper.10/ However, beyond this brief complaint that the accident analyses are not based on Harris Plant specific data, Mr. Eddleman ignores the fact that the Harris Plant has design and operating characteristics similar to the WASE-1400 reactor -

prototype (DES at 5-58) and further, that the Staff's analyses .

/

of potential radiological consequences utilized environmental s

(Continued) ,

, just what contentions were set forth in this nearly two page

! statement ..." September 22 Order at 67. m l

10/ The rebaselined Reactor Safety Study is described in'Ap-pendix E of the DES. Mr. Eddleman does not even discuss --

much less critique -- this rebaselining effort.

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parameters specific to the~ Harris Plant site (DES at 5-60). As another Licensing Board has recently held, absent specific criticisms of the accident analyses, a simple allegation that the use of WASH-1400 data is improper fails to provide suffi- 1 l

cient specificity to form the basia of a contention. See Duke l l

Power Company (Catawba Nuclear Station, Units 1 cnd 2), " Memo- i rendum and Order (Reflecting Decisions Made Following Second Prehearing Conference)", slip op. at 8, 9 (December 1, 1982).

Contention 126 Eddleman proposed Contention 126 deals with the economic and socioeconomic costs for the Raleigh/Durham/ Chapel Hill area which could be associated with a beyond-design-basis .

accident.ll/ Section 4.3.7 of the DES describes the socioeco-nomic characteristics of this area (down to the level of con- .

sidering,. increased populations for football games at area univers1 ties) -- which is not' mentioned or disputed by Mrs Eddleman. Section 5.9.4.5 of the DEC analyzes the impacts

\. \

andcostsassociatedwithaccidents\at the Harris Plant, including health impacts on the population out to 50 miles (Table 5.8 at 5-67), costs of societal impacts ($5.9.4.5(4)).

11/ Whilo revised Contention 126 is not entirely clear on this point, an originally proposed, Contention 126 was limited to the costi lesulting from a Class IX accident. See Eddleman Pet.i tion at 233 ; September 22 Order at 70.

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and related econcmic costs i.e., agricultural, industrial losses (65.9.4.5(6) at 5-78 through 5-82). Mr. Eddleman does not explain the manner in which he disagrees with the Staff's assessments and in view of this lack of explanation, Applicants contend that proposed Contention 126 does not provide the required basis and specificity to be admitted as an issue in controvsrsy in this proceeding.12/

Contention 162 Eddleman proposed Contention 162 alleges that the Staff's analysis of groundwater releases in the event of a core meltdown penetrating the containment basemat is incomplete and inaccurate.13/ Mr. Eddleman appears to base this contention on ,

1 two factors: (1) the analysis does not consider the possibili-ty that the molten core could be vented to the atmosphere; and (2) the analysis is based upon a " typical" site and is not ap-plicable to the Harris Plant site. Eddleman Response at 30,

31. With respect to the first point, it should be noted that 12/ Applicants perceive the thrust of proposed Contention 126 to infer that some special value or benefit must be attached to university populations. Applicants do not agree with this as-sumption and believe that such value impacts are unquant fiable beyond considering impacts on the population as a whole.

13/ Proposed Contention 162 is a new contention rather than one previously deferred pending publication of the DES. Appli-cants do-not dispute the timeliness of this proposed conten-tion.

while the specific groundwater release analysis (DES, 55.9.4.5(5)) did not consider Mr. Eddleman's venting scenario, the Staff's analyses of severe accidents did include an assess-ment of atmospheric releases. See DES at 5-60, 61 and Tables 5.5 and 5.7. Mr. Eddleman has not argued that these release estimates would not bound the scenario he envisions. Absent such an allegation, Applicants contend that Mr. Eddleman has provided an insufficient basis for this portion of his conten-

! tion.

Mr. Eddleman also alleges that the groundwater release analysis is inaccurate in that it is based on a generic t

studyl4/ and is therefore not applicable to the Harris Plant site. Mr. Eddleman's reading of the. DES on this point is, how-ever, inaccurate. Contrary to Mr. Eddleman's claims, the Staff did review the Harris Plant site geology in order to determine groundwater travel times from Units 1 and 2 to the cooling tower makeup reservoir and then compared these times to those ,

applicable to the LPGS generic plant travel times (8.2 years for Unit 1; 6.7 years for Unit 2; O.61 year for the generic plant). DES at 5-71. Based upon its analysis, the Staff con-cluded that the liquid pathway consequences of a core melt accident at the Harric Plant are less than those calculated in 14/ " Liquid Pathway Generic Study", NUREG-0440 ("LPGS"). 'See DES at 5-69.

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CONCLUSION Applicants do not object to the admission of certain as-pects of Cor.tcntion 8F. The remainder of the deferred and new contentions related to the DES as discussed in the June 20 Pleading should be rejected or the reasons set forth above.

Respectfully submitted, h 1c i,

\ ~I h The as A. Baxter, P.C.

Joh H. O'Neill Deb rah B. Bauser

.mW , PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 2C036 (202) 822-1000 Rtchard E. Jones Samantha Francis Flynn H. Hill Carrow CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-6517 Counsel for Applicants Dated: July 8, 1983

, . . ' - "l$3 ~

deta) vs. Gornan assuned wind scocd of' 'y}fec - Ga31){l.([qD cay

,f radionuclides in the niune is Governed by hours in transnort, as is lateral diffusion that increasesC$Sd*E the width of the f 8 ISO niune.M #CNg

1. E I13dE6

$ berJtThe dV54$ Ghm/d (/i39 lbid 4N /M8 numa evacuation pfan doe s not address the needs of the Town of Chanel Hill as expressed in the renort of its Mayor's Task //apg Force on the Incact of the Shearon Harris plant, does not fund tho evacuation and energency planning for 'J1e State and nearby communities, thus incosing costs on then without ecmnensation, and

'thermtaxmana&==m gumcqn f ailing to recognize their needs as set forth in the Task Force renort for independent nonitoving, cronnt warning, and sufficient means to evacuate the conulation daould that becone necessary (all of these due to radioactive releases fron the Harris plant).

l

.D. The clan has other specific deficiencies which can

.117 be determined af ter I have seen a cony of it, narticularly in terns of cersonnel traxining, nanning of agencies needed to essist in energency resconse (e.g. city governments, fire denartnents, HiShway Patrol, colice, health, hosuital energency roons , etc) on a 2h-hour basis, tines and nethods of evacuation, neans of locating the niune and assessing its dangers (e.g. because there a=e no cressurized ionization monitors on'it and no instrudents able to trece its direction off-site in niace f The cost of naintaininE and creating energency response plans for the Harris nuclear olant, testing' sane as recuired by 10 CFR FO.h7 and 10 CFR 50 Aependix E, has been innronerly x left out of Applicants' cost-benefit analysis under NEFA and 10 CF" 51.21.

Inclusion of these costs would render the plant even nere uneconomical than it otherwise is, and are anothe r reason i t should not be censed.

! .